In this medical malpractice action in which it is claimed that the infant plaintiff, who is now in a mainstream school setting with resource room help, suffered perinatal brain damage, plaintiff moves for an order deeming the notice of claim previously served on defendant New York City Health and Hospitals Corporation ("HHC") timely served and directing HHC to produce all fetal heart monitoring strips concerning the labor and delivery or alternatively if the strips are not produced striking HHC's answer for its spoliation of evidence or precluding HHC at trial from referring to the strips which have not been produced and directing a missing documents charge as to any strips which have not been produced. HHC opposes the motion and cross moves for an order dismissing the action based on plaintiff's failure to timely serve a notice of claim. In the exercise of my discretion the cross motion is granted, and the action is dismissed. The branch of the motion seeking an order deeming the notice of claim timely served is denied. In light of the dismissal I do not reach the balance of the motion.

During the pregnancy in issue the infant's mother had high blood pressure and gestational diabetes which was controlled by diet alone. On December 23, 1997 the mother's physician, Dr. Lam, ordered an ultrasound to ascertain fetal growth. See motion, Exh. 2, p. 12 The estimated date of confinement listed on that test requisition form was February 28, 1998. The ultrasound was performed on January 12, 1998, and all of the measurements taken , including the head circumference, showed "appropriate growth." Ibid p. 13 It appears that at one visit on February [*2]27, 1998 to the clinic at Gouverner Hospital, an HHC entity where the mother received her prenatal care, the mother's blood pressure was elevated and she complained of having headaches and seeing of spots, so she was referred that day to Bellevue Hospital Center, an HHC entity, to rule out preeclampsia ^[FN1].

The mother was seen in Bellevue's emergency room at about noon, pressure medication was administered and she was admitted to the hospital at 2:45 p.m. for induction of labor. The 2:45 p.m. nurse's admission note (See motion Exh. 2, p. 82) indicates that the mother was having mild irregular contractions with "+LTV." The Nurse's Labor Progress Chart form (Exh. 2, p. 35) indicates under the decelerations category that there were "+ LTV" between 3:30 p.m. and 8:00 p.m. on February 27 which presumably means positive, late variable decelerations because under the heading "Decelerations" is printed V = Variable, L = Late, E = Early". After that time until early the next morning there were no decelerations.

Meanwhile at 4:25 p.m., on February 27 when the mother was dilated 1 - 2 cm and was 50% effaced, a cervidil was inserted into her vagina to commence induction. At about 10:20 p.m. that evening the administration of Pitocin to induce labor was commenced via I.V. The records reflect that the mother experienced contractions, characterized in the Labor Progress Chart as irregular and/or mild through 4:30 a.m. on February 28, when the contractions became of "moderate intensity." See Exh. 2, pp 34-37, 85 The contractions continued to be of moderate intensity through the ultimate delivery. Id pp 37, 85 The nurse's note of 5:30 a.m. indicates that there was "good beat to beat var"with "occasional variables noted." The 4:00 a.m. and 5:30 a.m. progress record notes indicate in effect that the patient was making little progress in terms of dilating, that the patient would be re-examined and that if there were no change a Caesarean section would be performed. A 5:53 a.m. nurse's note indicates that the patient's cervix was unchanged and that she was informed about epidural anesthesia, which the patient indicated she would like, so the anesthesiologist was informed. Id p. 85 At 6:30 a.m. there was an anesthesia pre-assessment. Id pp 43, 86 At that time there were no decelerations. Id 37 At 7 a.m. the patient was prepped for the C-section, at 7:45 the incision was made, and at 8:06 the infant was delivered. Id p. 86

According to the infant's chart the infant was born weighing about 8½ lbs, had normal tone, pink color , good turgor, was alert, had a vigorous cry, had all his reflexes intact, had normal breathing, had a head which was 35cm in circumference and was symmetrical and round without molding or other problems noted, had Apgar scores of 8 and 9 and was sent to the regular nursery for "routine newborn care." See motion Exh. 3, pp 6, 7, 20-21 Because an 8:50 a.m. dextrostick reading showed a low glucose level of 29mg/dl the baby, who was born to a mother with gestational diabetes, was given early feedings of formula and a dextrostick series was ordered. The first feeding was at 9:00 a.m. Id p. 29 Twenty minutes later at 9:20 a.m. the dextrostick test was repeated, and the infant's blood glucose had risen to 36mg/dl. The 9:20 a.m. nurse's note indicates that tremors on all extremities were noted and that a Dr. Yi was notified. Id p. 24 Fifteen minutes later, and with Dr. Yi in attendance, another dextrostick reading was taken and, the infant's blood glucose had risen to 55mg/dl. Id pp 24, 29 Twenty minutes later [*3]the blood glucose level was at 58mg/dl. The attending physician, Dr. Kolodny, noted that the infant's sugar level had risen and that he was "asymptomatic." Id p. 11 The nurse's notes which followed indicated repeatedly that the infant was alert and active without signs of distress. Id p. 24-26 By 8 p.m. that evening the blood glucose level was at 64mg/dl, near normal. Id p. 29 The baby was discharged from the hospital with his mother on March 3, three days after his birth. Throughout his hospital stay and at discharge he was considered, according to multiple chart entries, to be a well infant who was active and alert with normal color, tone and breathing, and without signs of distress. Id pp 7, 11, 24, 25, 26, 30 The infant's hospital discharge summary recited under significant clinical findings, "NL Exam". Id p. 4 The infant's hospital course was listed as "unremarkable" and his problems were listed as "none." Ibid

According to the mother it eventually became "clear" to her from the time that the infant was "very young that he had significant medical problems." Mother's aff of 4/24/08, ¶ 5 Her expert pediatrician, Dr. Trifiletti, asserts that the infant had poor head control at age 3 months, low tone in the trunk at age 4 months, did not walk until 15 months and exhibited speech lags. According to Dr. Trifiletti an MRI done in September 1998, when the infant was about 7 months old (See motion, Exh. 4), showed cerebral atrophy. In November 1998, when the infant was about 8½ months old, his parents brought him to the Shield Institute for the Mentally Retarded and the Developmentally Delayed where he was referred by his pediatrician "due to possible developmental, receptive and expressive language delays, as well as motor delays." See cross motion, Exh. B In giving the Shield Institute the infant's birth history the mother stated that the infant was born via C-section at full term and had no further complications after birth. The mother advised the Institute that the infant's neurologist, Dr. Duran, had informed her that the September 1998 MRI showed water on the brain which would be monitored by the neurologist and the pediatrician and that another MRI and visit with the neurologist were scheduled for the following year. The mother asked for early intervention services for the infant. Early intervention services were then recommended by the Institute to improve the infant's cognitive, reception and expressive language skills and his motor skills. Ibid

In February 2001, three years after the infant's birth, the mother sought the legal advice of her current counsel, Fitzgerald & Fitzgerald, and retained that firm on February 26, 2001. See Leen reply aff ¶ 64; Martinez aff of 4/24/08, ¶ 11 On June 5, 2002 another MRI of the infant's brain was performed which showed "mild diffuse volume loss." Cross motion, Exh. A On July 15, 2002, about a year and a half after the mother first sought her counsel's advice and retained the firm, and about 4½ years after the alleged malpractice, her counsel served a notice of claim on HHC. Then about three and a half years later on January 10, 2006 the mother commenced this action on behalf of the infant. Discovery proceeded and a note of issue was filed.

By notice of motion served on February 12, 2008, about 2 weeks before the infant's tenth birthday and the expiration of the time to move for leave to serve a late notice of claim, plaintiff now seeks an order, inter alia, deeming the previously served notice of claim timely served, nunc pro tunc. Plaintiff's counsel asserts that leave to serve a late notice of claim should be granted pursuant to General Municipal Law § 50-e(5) for several reasons. The mother, who first contacted her counsel in February 2001, asserts, without providing a date or the source of her knowledge, that "[u]p until recently" she did not know that the cause of the infant's injuries was "some problem with the way [her] labor and delivery were handled at Bellevue." Martinez aff ¶ [*4]4 She further claims, without indicating the reason for her optimism, that she had remained hopeful that her son's condition would fully improve, notwithstanding her statement that it was "clear" to her from the time the infant was very young that he had significant medical problems. Martinez aff of 4/24/08 ¶ 5

Plaintiff's counsel maintains that HHC "acquired actual knowledge of the essential facts constituting the claim within" ninety days after the claim arose or "within a reasonable time thereafter" [GML § 50-e(5)] because HHC possessed the medical records, which according to plaintiff's experts demonstrated the alleged malpractice. Plaintiff's counsel further urges that because HHC had the records no prejudice can ensue. Plaintiff's counsel also maintains that it would be unfair to penalize the infant because of any delay on the part of his mother, and that any delay on the part of counsel in moving for leave to file a late notice of claim is reasonable because counsel allegedly needed the fetal heart monitoring strips to make this motion.

HHC opposes the motion, asserting that there is no excuse for plaintiff's failure to move earlier for leave to serve a late notice of claim because the mother was aware within months of the infant's birth of alleged deficits, having seen a neurologist, obtained an MRI and obtained an early intervention evaluation and services, and that she was presumably aware of the possibility of malpractice at the latest when she first contacted her current counsel. Defense counsel observing that the notice of claim served in 2002 was a nullity, since it was served late and without leave of court, further notes that plaintiff contacted and retained counsel years ago, yet plaintiff's counsel inexplicably waited about a year and a half before serving the tardy notice of claim and then waited about another 5½ years to make this motion. HHC's counsel maintains that the failure to timely serve a notice of claim or to earlier seek leave to serve a late notice of claim was not attributable to the plaintiff's infancy, but rather to a lack of diligence on the part of counsel and the mother. Defense counsel additionally maintains that plaintiff's counsel's excuse for failing to move expeditiously for leave to serve a late notice of claim, namely that the absence of fetal monitoring strips prevented prompt action on plaintiff's counsel's part, is without merit since plaintiff's counsel was able to prepare a notice of claim in 2002 as well as a complaint and a bill of particulars, and since plaintiff's experts were of the opinion that malpractice could be established without the strips.

Defense counsel also opposes the motion on the ground that neither HHC nor its counsel "acquired actual knowledge of the essential facts constituting the claim within "90 days after the claim arose" or "within a reasonable time thereafter" (GML § 50-e(5), (1)) because "there was scant reason to identify or predict any lasting harm to the child, let alone a development disorder" (Williams v Nassau County Medical Center, 6 NY3d 531, 537) because the infant's hospital course was normal and because after an early feeding his blood sugar promptly rose from 29mg/dl to 55mg/dl within 35 minutes of the first feeding at 9:00 a.m. HHC also asserts that the plaintiff has failed to meet his burden of establishing a lack of prejudice. Ocasio v NYCH & HC, 14 AD3d 361 (1st Dept, 2005); Felice v Eastport/South Manor Central School District, 50 AD3d 138

In the exercise of my discretion, following a review of the papers submitted on this motion and cross motion and the relevant factors [See GML § 50-e(5)], the cross motion to dismiss is granted. It is readily apparent that the numerous delays in this case were not due to the plaintiff's infancy. Bucknor v NYCH & HC, 44 AD3d 811Nor can it be said that the multiple delays by the mother and her counsel were reasonable. Ibid; Seymour v NYCH & HC, [*5]21 AD3d 1025, lv. to app. den. 6 NY3d 711; Moise v City of Nassau, 234 AD2d 275, lv. to app. den. 89 NY2d 811

Moreover, notwithstanding plaintiff's expert's efforts to demonstrate otherwise (See Williams supra at 536), HHC did not acquire actual knowledge of the essential facts constituting the claim within the requisite period of time or within a reasonable time thereafter. "Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process." Williams supra 537; See also Bucknor supra at 813; Arias v NYCH & HC, 50 AD3d 830; Webb v NYCH & HC, 50 AD3d 265; Dumancela v NYCH & HC, 32 AD3d 515 "Where... there is little to suggest injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim." Williams, supra at 537 Here as in Williams (at 537) there was "scant reason to identify or predict any lasting harm to the child, let alone a developmental disorder." The records reveal that the staff viewed the infant's condition at birth and throughout the 3 day hospitalization as normal. Plaintiff's experts' ipse dixit assertions that the mother's lack of progress in dilating was due to a disproportion between the mother's pelvis and the infant's head which with the administration of Pitocen allegedly caused "strong" contractions, a forcing of the infant's head through an inadequate pelvis, "compression" of the infant's head and brain for 10 hours (See Halbridge aff, ¶ 20) and head "trauma", variable decelerations and hypoxic insult (See Trifiletti aff), are speculative, unavailing and unsupported by the record. Plaintiff's experts do not comment on the January 12, 1998 ultrasound report which showed appropriate growth for the fetus' age, or on the circumference of the infant's head at birth as documented in the chart, nor do they comment on the notations in the chart which characterize the infant's head at birth as symmetrical and round, rather than having molding and cephalohematoma. Plaintiff's expert also do not comment on the infant's having at birth Apgars of 8 and 9 and in the delivery room and throughout his hospital stay pink color, all of his reflexes, normal tone and except for the brief incidence of tremors which quickly resolved with the first feeding, no signs of distress. They also fail to comment on the fact that the infant was active and alert and was viewed as having an unremarkable hospital course. While plaintiff's neurology expert asserts that the fetal monitoring strips were not available to tell how prolonged or significant any distress was, the plaintiff's experts failed to note that the 5 a.m. variable decelerations which they rely on were listed in the chart as "occasional" and that there was good heart beat to beat variability. See motion Exh. 2, p. 86 Indeed plaintiff's experts effectively concede that they do not know "how prolonged and significant any distress was," thereby rendering their opinions speculative. Also while plaintiff's expert's claim that the mother was experiencing "strong" contractions which allegedly traumatized and compressed the infant's head and brain over 10 hours, the labor progress chart and the nurses' notes after the commencement of the Pitocin only list the contractions as being of mild and moderate intensity. See Motion, Exh. 2, pp 37, 85 In addition, while plaintiff's pediatric neurologist in his initial moving affirmation claimed that the infant demonstrated an inability to auto-regulate his blood sugar as "documented by the minimal change in the infant's blood glucose" between 8:50 a.m. when it was at 29mg/dl and 9:30 a.m. after the early feed when it was 36mg/dl, the expert neglected to mention that five minutes later at 9:35 a.m. it was 55mg/dl, and twenty minutes thereafter, 58mg/dl. See Trifiletti, aff. 1/17/08 ¶ 5, 6; motion Exh. 3, pp 22, 29 As noted by plaintiff's [*6]expert, the infant attained a "near normal" glucose level of 64 at 8 p.m., 12 hours after his birth. While Dr. Trifiletti attempts to avoid the impact of his initial affirmation via his reply affirmation (¶ 28) which asserts that the infant's blood glucose "was still abnormally low 12 hours after deliver", he does not explain why in his earlier affirmation he stated in effect that the infant's blood glucose level was adequate 12 hours after birth (See Trifeletti; aff of 1/17/08 ¶ 7). In any event that the chart reflects that within 45 minutes of the first feeding the blood glucose level rose from 29 to 55mg/dl and that the infant became asymptomatic would suggest to the healthcare providers that the infant was demonstrating the ability to auto-regulate his glucose level. So again in light of all of the foregoing there was "scant reason to identify or predict any lasting harm to the child." Williams at 537

In addition plaintiff has failed to demonstrate a lack of prejudice, and as the Court noted in Williams (supra at 539) "proof that the defendant had actual knowledge [of the facts constituting the claim] is an important factor in determining whether the defendant is substantially prejudiced by "the delay in serving the notice of claim." Here, actual knowledge has not been established.

In light of the foregoing the cross motion is granted, and the branch of the motion seeking an order deeming the notice of claim timely served is denied. In light of the dismissal of the action it is unnecessary to reach the balance of the motion.

Settle order.

Dated:July 16, 2008

60 Centre Street

New York, NY

J.S.C.